Devinder Singh vs State of H.P.

R.S. Thakur, J.—This criminal appeal is directed against the order of the learned Additional Sessions Judge, Sirmaur and Solan Districts, camp at Solan, dated September 30, 1985, whereby the Appellant Devinder Singh, hereinafter referred to as the accused, was convicted for the offence u/s 323 IPC and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default to undergo further simple imprisonment for three months.

The facts of this case are that the accused belongs to village Kaunta Parla while one Smt. Durgi deceased belonged to Kaunta Varla within the jurisdiction of police station Kasauli, district Solan. Some time prior to December 10,1984, one Multan Singh of Kaunta Parla had taken away his wife for medical treatment and had left Smt. Durgi for preparing meals for his children and also to look after the house-hold affairs in their absence. On December 10, 1984, when Smt. Durgi was sitting near a public water tap along with other ladies near the house of Multan Singh, the accused came there and gave severe beating to said Durgi as a result of which she became uncons-cious and later on died. The accused was than tied with ropes and kept in his house tied to a charpai and the matter was reported to the police as a result of which a case u/s 302 IPC was registered. The police came on the spot placed the accused under arrest and also sent the dead body of Smt. Durgi for postmortem examination when it was found that she had died due to shock and haemorrhage and fracture of the skull bone. The police also came to know during the investigation that some years prior to the incident, Smt. Durgi was also working in the house of the accused at the behest of his father after the death of mother of the accused and the accused was labouring under Suspicion in his mind that said Durgi was sorceress and it was on account of her sorcery that not only his mother died but he himself was also suffering from the ailment of epilepsy fits and he thus intended to cause the death of said Smt. Durgi.

After investigation the accused was challaned u/s 302 I.P.C. The learned Additional Sessions Judge after full trial of the case, however, vide the, impugned judgment came to the conclusion that although no case u/s 302 I.P.C. was established against the accused but there was sufficient evidence to hold him guilty u/s 323 of the Indian Penal Code and he accordingly convicted and sentenced him for the aforesaid offence, as stated earlier.

The learned Counsel for the accused at the time of arguments in this Court has mainly laid his stress on one point, that is, that since the accused was a patient of epilepsy for the last 12 years prior to the incident which caused him temporary insanity it was in a fit of insanity on account of the said ailment that the accused committed the offence in question and his case, therefore, was covered by the provisions of Section 84 of the Indian Penal Code and he was, therefore, entitled to acquittal.

The learned Assistant Advocate General on the other hand has supported the finding of the lower Court and contended that there was no sufficient evidence on record to bring this case within the purview of Section 84 of the I.P.C.

I have carefully considered the evidence on record and the arguments advanced and for reasons to be recorded presently Iieel that there is no merit in the appeal and the same desarves dismissal.

It is an established law that having regard to the pro-visions of Section 105 of the Indian Evidence Act, every person who has attained the age of discretion is presumed to be sane land as such is liable for the acts constituting a criminal offence if done with the requisite knowledge or mens rea and if an accused wants to avoid his culpability by bringing his case within any of the provisions under Chapter 4 with regard to the General Exceptions, the burden lies upon him to prove that he was entitled to benefit in this behalf under the particular provisions. Section 84 which is pressed into service in this case reads:

Section 84: Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Thus, in the instant case, it was for the accused to prove that at the time when he gave beating to Durgi which resulted in her death, by reasons of unsoundness of mind, he was incapable of knowing that it was a criminal act or that his action in this behalf was wrong or contrary to law. In the instant case, I do not feel satisfied that the accused has been successful in discharging this burden. Rather the record shows that the accused was charge-sheeted by the learned Additional Sessions Judge for the offence u/s 302 IPC on April 23, 1985 and when his statement was recorded he gave clear answers to the specific questions, namely that he had heard the charges against him but he did not plead guilty to the charge and claimed trial. Thus, at the commencement of this trial neither the Court suo moto formed an opinion that the accused appeared to be of unsound mind and as such incapable of making his defence nor did the accused or the counsel defending him did any overt act to bring it into the notice of the trial Court that the accused was of unsound mind as in that case the Court would, have followed a different procedure, namely, to hold an enquiry and give finding with regard to the insanity of the accused under chapter XXV of the Code of Criminal Procedure

There is no doubt that the accused during the course of the trial has been able to prove the fact that he had been having fits of epilepsy for atleast 12 years prior to the incident but this was not sufficient. It was incumbent upon the accused to further prove that at the time when he gave beating to said Smt. Durgi, he, was actually under a fit of insanity on account of the epilepsy. This, however, has not been proved at all.

In fact there is no medical evidence worth the name on the record to show that he was suffering from this epilepsy to this extent that it caused insanity to him with a propensity to resort to violence. Not a single instance of such violence on the part of the accused has been proved during the period of 12 years prior to the incident in question. Thus, it cannot be said that at the time when he committed the act in question he was having attack of epilepsy which had caused him insanity so as to resort to violence. Simply because some of the prosecution witnesses have admitted that the accused was suffering from epilepsy for about 12 years prior to the incident, is not sufficient to hold that the accused committed the act in question in a fit of insanity.

Thus, in order to bring his case within the purview of the provisions of Section 84 of the Indian Penal Code, it was incumbent upon the accused to have proved; (a) that the accused was insane, (b) that he was insane at the time when he com mitted the act and not merely before or after the act, and (c) that as a result of the unsoundness of mind the accused was incapable of knowing the nature of the act or that he was doing what was really wrong or contrary to law. It is not the law that every person mentally diseased is ipso facto exempted from the criminal responsibility. In the instant case, as the lower Court has also held, no case of legal insanity has been proved by the accused, namely, that at the time of occurrence . he was of unsound mind, incapable of knowing what he was doing or that he was doing wrong and he was, therefore, rightly convicted by the lower court.

The learned Counsel for the accused has stated at the bar that the accused has already run out his sentence as imposed by the lower Court and in these circumstances the discussion has become only one of academic nature.

In view of the above, the appeal fails and the same is dismissed while the order of the lower Court dated September 30,1985 is affirmed.